The United Tribe of Shawnee Indians (UTSI) brought this action for
declaratory and mandamus relief against the United States, the Secretaries of
Interior and Defense, and various federal administrative officials. UTSI sought a
declaration of its status as a federally recognized Indian tribe, a mandate that it
be included on the list of recognized tribes maintained by the Bureau of Indian
Affairs, and a declaration that a constructive trust in its favor be placed on
certain lands subject to disposition under the Federal Property and Administrative
Services Act, 40 U.S.C. §§ 471 et. seq.(1) The district court granted defendants'
motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1), concluding that UTSI's claims were barred by the doctrines of
sovereign immunity, ripeness, standing, and primary jurisdiction. See United
Tribe of Shawnee Indians v. United States, 55 F. Supp. 1238 (D. Kan. 1999).
UTSI appeals and we affirm.

I

The facts underlying this litigation are set out in some detail in the district
court opinion. We therefore recite only those necessary to our disposition of this
appeal. UTSI is made up of thirty members, all of whom are related to its
representative, principal chief Jimmie D. Oyler. It is based in Kansas on land
owned by Mr. Oyler, which was patented to his ancestors under the Treaty with
the Shawnee, 10 Stat. 1053 (1854). UTSI claims it is a present-day continuation
as a tribal entity of the Shawnee Tribe that entered into the 1854 Treaty.

In 1994, Mr. Oyler initiated proceedings with the Bureau of Indian Affairs
(BIA) under 25 C.F.R. Pt. 83. These regulations provide the administrative
process by which an Indian group can establish it exists as an Indian tribe,
thereby becoming recognized by the federal government for purposes of the
protection, benefits and services the government provides to tribes. See 25
C.F.R. § 83.2 (2000). Mr. Oyler abandoned these proceedings before the BIA
had made a determination regarding whether UTSI was entitled to recognized
status.

In 1998, federal officials began considering the potential disposal of the
Sunflower Army Ammunition Plant as excess property. Part of this facility
occupies land that was previously included in an Indian reservation created by the
1854 Treaty with the Shawnee. UTSI is based within three miles of the
Sunflower Plant. The Federal Property and Administrative Services Act, which
controls the management and disposal of government property, provides for the
transfer to the Secretary of the Interior of

excess real property located within the reservation of any group,
band, or tribe of Indians which is recognized as eligible for services
by the Bureau of Indian Affairs. Such excess real property shall be
held in trust by the Secretary for the benefit and use of the group,
band, or tribe of Indians, within whose reservation such excess real
property is located.

40 U.S.C. § 483(a)(2).

In the present lawsuit, UTSI seeks a judicial ruling that it is a recognized
tribe by virtue of both the 1854 Treaty and the decision in The Kansas Indians,
72 U.S. 737, 756 (1866), which held that the Shawnee tribe existed as a
recognized tribal entity in 1866. UTSI also requests that reservation land
included in the Sunflower facility be placed in constructive trust for its benefit,
alleging it is entitled to this equitable relief under section 483(a)(2) due to its
asserted recognized status. The district court did not reach the merits of UTSI's
claims. Instead the court dismissed for lack of jurisdiction, holding that the only
basis for a waiver of defendants' sovereign immunity was provided by the
Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA), and that
UTSI's
claims were not ripe for review under the APA because no final agency action
had been taken. On appeal, UTSI contends the district court erred in failing to
conclude this case falls within the exception to sovereign immunity discussed in
Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 (1949). UTSI
also asserts that the lack of a final order is irrelevant to its ability to proceed
because it is not asserting claims directly under the APA. Because we view these
two issues as dispositive of this appeal, we need not address the remaining claims
made by UTSI.

II

Motions to dismiss under Rule 12(b)(1) may take one of two forms. See
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). First, a party may
make a facial challenge to the plaintiff's allegations concerning subject matter
jurisdiction, thereby questioning the sufficiency of the complaint. Id. In
addressing a facial attack, the district court must accept the allegations in the
complaint as true. Id. "Second, a party may go beyond allegations contained in
the complaint and challenge the facts upon which subject matter jurisdiction
depends." Id. at 1003. In addressing a factual attack, the court does not
"presume the truthfulness of the complaint's factual allegations," but "has wide
discretion to allow affidavits, other documents, and a limited evidentiary hearing
to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.

It appears from the record on appeal that defendants mounted a factual,
rather than a facial, challenge to subject matter jurisdiction below. "Accordingly,
we review the district court's dismissal for lack of subject matter jurisdiction de
novo[, and its] findings of jurisdictional facts for clear error." Id.

III

We turn first to UTSI's argument that sovereign immunity is waived here
under the holding in Larson. The United States as a sovereign is immune from
suit unless it consents to be sued. See United States v. Murdock Mach. & Eng'g
Co., 81 F.3d 922, 929 (10th Cir. 1996). This immunity extends to injunctive
relief such as that sought here; absent express provision, a court has no
jurisdiction to either restrain the government from acting or compel it to act. See
id.; see also In re Talbot, 124 F.3d 1201, 1206 (10th Cir. 1997). "Any waiver
'must be construed strictly in favor of the sovereign and not enlarged beyond
what [its] language requires.'" Talbot, 124 F.3d at 1206 (quoting United States
v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)).

In Larson, the Supreme Court recognized an exception to sovereign
immunity under the ultra vires doctrine.

[W]here the officer's powers are limited by statute, his actions
beyond those limitations are considered individual and not sovereign
actions. The officer is not doing the business which the sovereign
has empowered him to do or he is doing it in a way which the
sovereign has forbidden. His actions are ultra vires his authority and
therefore may be made the object of specific relief.

Larson, 337 U.S. at 689.

UTSI contends that the BIA's actions in refusing to accord it status as a
recognized tribe and enter it on the list of recognized tribes is outside the limit on
the BIA's authority imposed by the Federally Recognized Indian Tribe List Act
of 1994, Pub. L. No. 103-454, 108 Stat. 4791 (1994) (codified at 25 U.S.C. §
479a). Section 103 of that Act provides:

(3) Indian tribes presently may be recognized by Act of
Congress; by the administrative procedures set forth in part 83 of the
Code of Federal Regulation denominated "Procedures for
Establishing that an American Indian Group Exists as an Indian
Tribe;" or by a decision of a United States court;

(4) a tribe which has been recognized in one of these manners
may not be terminated except by an Act of Congress.

25 U.S.C. § 479a (note). UTSI argues that because the Shawnee tribe was
recognized as a tribal entity by Congress in the 1854 Treaty and by the Supreme
Court in The Kansas Indians, the BIA acted outside the limits on its authority by
refusing to list UTSI as a recognized tribe, which effectively terminated its
existing recognition contrary to section 103.

UTSI's argument assumes the very factual issue at the heart of this
litigation. UTSI can only prevail on its contention if we accept its bare assertion
that it is the present-day embodiment of the Shawnee Tribe. The only evidence
even arguably offered by UTSI to support this proposition is the fact that UTSI is
based on land patented to Mr. Oyler's ancestor by the Treaty. While this fact
may establish that Mr. Oyler's ancestor was a member of the Shawnee tribe and
that Mr. Oyler is therefore a descendant of a tribal member, it says nothing about
whether UTSI has maintained its identity with the Shawnee tribe and has
continued to exercise that tribe's sovereign authority up to the present day.
While the 1854 Treaty and The Kansas Indians recognized the sovereignty of the
Shawnee Tribe in the nineteenth century, those events without more do not speak
to the status of UTSI today. Because UTSI has failed to allege facts
demonstrating that the BIA's failure to recognize it or place it on the list of
recognized tribes is ultra vires, that doctrine does not provide a basis for the
waiver of sovereign immunity under Larson.(2)

Moreover, Larson provides an alternative ground for our conclusion that
UTSI may not rely on the ultra vires doctrine. Reliance on the doctrine

may fail, as one against the sovereign, even if it is claimed that the
officer being sued has acted unconstitutionally or beyond his
statutory powers, if the relief requested cannot be granted by merely
ordering the cessation of the conduct complained of but will require
affirmative action by the sovereign or the disposition of
unquestionably sovereign property.

Painter v. Shalala, 97 F.3d 1351, 1359 (10th Cir. 1996) (quoting Larson,
337
U.S. at 691 n.11). UTSI requests that the BIA be directed to accord it status as a
recognized tribe and to place it on the list of recognized tribes. UTSI also asks
the court to place government property in a constructive trust for its benefit.
Because this requested relief would require us to order federal officials to take
various forms of affirmative action and affect the disposition of sovereign
property, the suitdoes not fall within the ultra vires doctrine.

Finally and perhaps most significantly, the Court in Larson took pains to
point out that the ultra vires doctrine is grounded on "the officer's lack of
delegated power. A claim of error in the exercise of that power is therefore not
sufficient." Larson, 337 U.S. at 690 (emphasis added). The mere allegation that
the official acted wrongfully "does not establish that the officer, in committing
that wrong, is not exercising the powers delegated to him by the sovereign. If he
is exercising such powers the action is the sovereign's and a suit to enjoin it may
not be brought unless the sovereign has consented." Id. at 693.

The BIA has been delegated the authority to determine whether recognized
status should be accorded to previously unrecognized tribes. See H.R. Rep. No.
103-781, at 3 & n.10 (1994), reprinted in 1994 U.S.C.C.A.N. 3768, 3769-70;
see
also 25 C.F.R. Pt. 83. Thus any action taken by the BIA with respect to
determining whether UTSI is entitled to recognized status is within its delegated
authority, and therefore not ultra vires, notwithstanding UTSI's assertion that the
BIA is wrongfully withholding such status. UTSI cannot invoke the ultra vires
doctrine by attempting to equate the BIA's current failure to accord it recognized
status with the termination of recognized status previously given.

IV

UTSI also contends sovereign immunity is waived by the APA. The
district court held that UTSI'S claims for tribal recognition and inclusion on the
list of recognized tribes were not ripe for review under the APA because there
had been no final agency action. The court further held that because the question
of the tribe's asserted existence and previous acknowledgment are within the
BIA's special expertise, the agency has primary jurisdiction over the recognition
issues involved in UTSI's claim regarding the Sunflower facility. Finally, the
court held that sovereign immunity over UTSI's request for a constructive trust
was not waived by the APA because that claim did not seek review of any agency
action.

The APA contains an express waiver of sovereign immunity for actions
brought against the United States by providing that

[a]n action in a court of the United States seeking relief other than
money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or
under color of legal authority shall not be dismissed nor relief
therein be denied on the ground that it is against the United States or
that the United States is an indispensable party. . . . Nothing herein .
. . affects other limitations on judicial review or the power or duty of
the court to dismiss any action or deny relief on any other
appropriate legal or equitable ground . . . .

5. U.S.C. § 702. The APA provides that agency action is judicially reviewable in
two instances: when it is "made reviewable by statute" and when it constitutes
"final agency action for which there is no other adequate remedy in a court." Id.
§ 704. UTSI has not identified any other statute which provides for judicial
review of the official conduct it challenges, and thus any attempt to obtain
judicial review directly under section 704 of the APA must be preceded by a final
agency action. See, e.g., Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 243
(10th Cir. 1991).

UTSI contends it is not proceeding directly under the APA and that its
claims are therefore not affected by the lack of a final order. It further asserts
that the APA's waiver of sovereign immunity applies to all civil claims against
the United States and is not limited to actions seeking judicial review of final
agency action.

It is true, as UTSI asserts, that section 702 has been held to provide a
general waiver of sovereign immunity in all civil actions seeking equitable relief
on the basis of legal wrongs for which governmental agencies are accountable.
See, e.g., United States v. Mitchell, 463 U.S. 206, 227 & n.32 (1983);
Murdock
Machine, 81 F.3d at 929 n.8; The First Presbyterian Church (U.S.A.) v. United
States, 870 F.2d 518, 523-26 (9th Cir. 1989); Clark v. Library of Congress,
750
F.2d 89, 102 (D.C. Cir. 1984). This fact alone does not allow UTSI's claims to
proceed. First, even if we assume that section 702 provides a waiver of
sovereign immunity, UTSI has failed to identify any federal statute other than the
APA itself that provides an express or implied cause of action in its favor.(3)
Second, in cases not governed by the APA, the doctrine of exhaustion applies as
a matter of judicial discretion. See Darby v. Cisneros, 509 U.S. 137, 153-54
(1993); Committee of Blind Vendors v. District of Columbia, 28 F.3d 130, 134
(D.C. Cir. 1994). As we discuss below, the policies underlying the exhaustion
doctrine dictate that it be required here.

As to the first of these purposes, the exhaustion doctrine
recognizes the notion, grounded in deference to Congress'
delegation of authority to coordinate branches of Government, that
agencies, not the courts, ought to have primary responsibility for the
programs that Congress has charged them to administer. Exhaustion
concerns apply with particular force when the action under review
involves exercise of the agency's discretionary power or when the
agency proceedings in question allow the agency to apply its special
expertise.

Id.

We have indicated that exhaustion is required when, as here, a plaintiff
attempts to bypass the regulatory framework for establishing that an Indian group
exists as an Indian tribe. See Western Shoshone Bus. Council v. Babbitt, 1 F.3d
1052, 1056-58 (10th Cir. 1993). In Western Shoshone we pointed out that "[t]he
judiciary has historically deferred to executive and legislative determinations of
tribal recognition," and that continuing such deference is justified by Congress'
broad power over Indian affairs. Id. at 1057. We were strongly persuaded in this
matter by the decision in James v. United States Dep't of Health and Human
Serv., 824 F.2d 1132 (D.C. Cir. 1987), in which the court expressly held
exhaustion to be mandated in circumstances virtually indistinguishable from
those before us.

In James, a group of Indians sought a declaratory judgment in federal court
that the failure to include it on the list of recognized tribes was contrary to law,
and requested an order directing that it be placed on the list. The Department of
Interior moved to dismiss on the ground that the group had not exhausted
available administrative remedies, contending "that because [the group] had not
applied for recognition under its published rules and regulations, [it was] not
entitled to a judicial declaration that [it] was federally recognized." Id. at1135.
In that case, as here, the group relied on historical events to assert that it was
already federally recognized and that it therefore need not exhaust administrative
channels. The court was not persuaded.

[T]he determination whether these documents adequately support the
conclusion that the [group was] federally recognized in the middle of
the nineteenth century, or whether other factors support federal
recognition, should be made in the first instance by the Department
of the Interior since Congress has specifically authorized the
Executive Branch to prescribe regulations concerning Indian affairs
and relations. 25 U.S.C. §§ 2, 9. The purpose of the regulatory
scheme set up by the Secretary of the Interior is to determine which
Indian groups exist as tribes. 25 C.F.R. § 83.2. That purpose would
be frustrated if the Judicial Branch made initial determinations of
whether groups have been recognized previously or whether
conditions for recognition currently exist.

Id. at 1137.

We agree. Determining whether a group of Indians exists as a tribe is a
matter requiring the specialized agency expertise the Court considered significant
in McCarthy, 503 U.S. at 145. Moreover, the judicial relief UTSI requests would
frustrate Congress' intent that recognized status be determined through the
administrative process. Finally, exhaustion "may produce a useful record for
subsequent judicial consideration, especially in a complex or technically factual
context." Id. at 145. These factors argue compellingly for requiring exhaustion.

The circumstances identified by the Court in McCarthy, where the interest
of the individual in obtaining prompt access to a judicial forum may outweigh
requiring exhaustion, are not present here. First, any current prejudice to UTSI
from the delay due to requiring exhaustion is the result of UTSI's own decision
years ago to abandon the administrative process before it was completed.
Second, there is no doubt that the agency is empowered to grant the relief UTSI
seeks. Third, nothing in the record before us indicates that the administrative
body is biased or has otherwise predetermined the issue. While the exchange of
correspondence between UTSI and the agency reveals that UTSI's submissions
were not adequate, the agency assured UTSI that it stood ready to work closely
with it to help identify deficiencies and give it the opportunity to strengthen its
petition for recognition. See Aplee. Supp. App. at 33-34. In our judgment,
requiring exhaustion is appropriate here.

VI

In sum, we conclude the ultra vires doctrine does not provide a waiver of
sovereign immunity. We further conclude that even if immunity is waived by the
APA with respect to UTSI's claims, UTSI must first exhaust its administrative
remedies. Because we hold that UTSI must proceed administratively with its
claim that it is entitled to status as a recognized tribe, and because only
recognized tribes are eligible for consideration under section 483(2) of the
Federal Property and Administrative Services Act, UTSI's claim under that
provision is not ripe for judicial review.(4)

The judgment of the district court is AFFIRMED.

FOOTNOTESClick footnote number to return to corresponding location in the text.

1. UTSI also raised claims under the National
Environmental Policy Act, 42
U.S.C. §§ 4331 et seq., and the Indian Gaming Regulation Act, 25
U.S.C. §§ 2701
et seq., and moved for a preliminary injunction. These matters were decided
adversely to UTSI and it does not pursue them on appeal.

2. The district court approached the ultra vires
doctrine by determining that
UTSI had no standing to claim the BIA had abridged the treaty rights of the
Shawnee tribe because UTSI failed to demonstrate it was a party to that treaty.
See United Tribe of Shawnee Indians, 55 F. Supp.2d 1238, 1243 n.1, 1244 n.2 (D.
Kan. 1999). In view of our determination that UTSI has not alleged sufficient
facts to show a waiver of sovereign immunity under Larson, we need not address
UTSI's arguments on appeal directed to standing. We note, however, that
standing issues are clearly implicated by UTSI's insufficient factual allegations.

3. We note that the federal officials named in
this suit were sued only in
their official capacities.

4. We also note that UTSI could seek review
under the APA of any
administrative decision on its request to have reservation land within the
Sunflower facility placed in trust for its benefit. UTSI's requested mandamus
relief is therefore precluded. See Mt. Emmons Mining Co. v. Babbitt, 117 F.3d
1167, 1170 (10th Cir. 1997).